Bernard v. Frank

179 F. 516, 101 C.C.A. 459, 1910 U.S. App. LEXIS 4677

• Court: Court of Appeals for the Second Circuit
• Decided: May 2, 1910
• Docket: No. 239
• Status: Published

Opinion

COXE, Circuit Judge

(after stating the facts-as above). It is not necessary to add to the extended discussion which every branch of this controversy has received. The validity of the patent and its infringement are no longer debatable questions between the complainants and Bernard. The only question is whether the consequences of infringement can be avoided by the formation of the corporation “William Bernard, Incorporated.”

It is true that the corporation is not expressly named as defendant, but it could not have had more direct and explicit notice of the injunction if it had been so named. It was cited by an order of the Circuit Court to appear and show cause why it should not be punished for contempt in violating the injunction and was given full opportunity to purge itself. In organizing the corporation Bernard was the moving spirit. That it was organized for the purpose of escaping the consequences of the infringement of the patent which Bernard had sold and assigned to the complainants, is too plain for controversy. That Bernard, as its treasurer, fully represented the corporation cannot be doubted and if the formality of a separate action had been deemed necessary, service on Bernard, the individual, would have been binding on Bernard, the corporation. A person who, with full knowledge of its provisions, has violated an in junction, may be punished for contempt, although not a party to the suit. In re Lennon, 166 U. S. 548, 17 Sup. Ct. 658, 41 L. Ed. 1110; In re Debs, 158 U. S. 564, 15 Sup. Ct. 900, 39 L. Ed. 1092; Bessette v. Conkey, 194 U. S. 324, 24 Sup. Ct. 665, 48 L. Ed. 997.

The order is affirmed, with costs.